Follow by Email

Subscribe To

Search This Blog

Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

Followers

Wednesday, November 5, 2008

False arrest claim reinstated

The Court of Appeals has reinstated a false arrest and malicious prosecution claim which the district court dismissed on summary judgment. The Second Circuit issued this ruling as an unpublished summary order, but since the Court reversed the district court, it's always newsworthy.

The case is Ramos v. City of New York, decided on November 4. Ramos claimed he was falsely arrested and maliciously prosecuted in connection with his arrest for second degree harassment and resisting arrest. Of course, Ramos has to prove the arrest lacked probable cause to prevail in this lawsuit. The resisting arrest claim boostraps on the harassment arrest. If the harassment arrest lacked probable cause, then there is no resisting arrest.

Ramos gets a trial because in order to arrest for second degree harassment, the arresting officer had to personally witness the violation. You can look it up: Criminal Procedure Law section 140.10(1)(a). In this case, that did not happen. The officer did not witness the event, and no one apparently looked up the harassment law. "It is uncontested that the offense did not occur in the officer's presence," the Second Circuit tells us. Therefore, the jury can find Ramos was arrested without probable cause. As the district court gave short shrift to the malicious prosecution claim, the Second Circuit tells it to re-consider that claim on remand.

1 comment:

That is a very interesting case. But what if the following scenario occurred: The complaining witness' FRIEND calls the police and accuses the Plaintiff of locking her out into the yard. The complaining witness is present with her friend when police arrive, and speaks to the police, but does not accuse the Plaintiff of anything. The police officer leaves without even taking a report. 24 hours later, the complaining witness makes up a story about assault and goes to the police station for her friend to file the charges. The police officer from the night before comes back and charges the Plaintiff with 3rd degree assault AND harassment in the second degree. What then?